In 1926, Michael Funiciello (also referenced as Michael Funicielo) of New York unwittingly got himself involved in a fraudulent scheme with a man named John P. Costello. Costello had convinced Funiciello, the owner of a successful trucking business, that they could purchase cases of whiskey to resell at a substantial profit. This plan resulted in Funiciello meeting Costello and John Moyer at the Emerson Hotel in Baltimore, Maryland, in June 1926. After Funiciello’s arrival on June 8, Costello and Moyer were joined by a third man, identified as “Mr. Rose,” and, on June 9 and 10, these men persuaded Funiciello to withdraw $15,000 cash as part of an investment scheme. Funiciello turned the money over to the men on June 10 with the understanding that they would be returning shortly with that money and more. However, after several hours of waiting for the other men to return with his money, Funiciello became suspicious and went down to the lobby of the hotel to inquire about Moyer, Costello, and Rose. When he was in the lobby of the hotel, he spotted a man outside whom he believed to be Mr. Rose. Funiciello followed this man to the train station, where he managed to have him arrested. The man whom Kimball identified as Mr. Rose was 47-year-old Edward A. Kimball, a deeply religious longtime student of theology, philosophy, medicine and law, who was described by his wife as a “literary loafer.” Kimball had an adult son and had an annual income from his father’s estate that allowed him to remain unemployed. Upon his arrest, Kimball explained that he had been staying at the Emerson Hotel and knew nothing of the crime. Kimball insisted that he had just arrived by train in Baltimore at 6:30 the previous evening from Washington. He said he had then spent the day in question visiting Annapolis on a Gray Line tour, returning to the Emerson Hotel just in time to check out and was on his way to catch the 6:05 train to Philadelphia. When he was arrested, he had only $32 on his person. Based on Funiciello’s identification, however, Kimball was jailed and a trial date was set. In November 1926, Kimball was tried on larceny charges. In addition to Funiciello’s eyewitness testimony, the state called as a surprise witness Joseph Elsie from Canton, Ohio. Elsie alleged that he, too, had been swindled by Kimball, using the name J.W. Rose, in a similar scheme in Chicago in April 1925. Elsie had lost $17,000 in the scheme. The jury found Kimball guilty. When the guilty verdict was announced, Judge Eugene O’Dunne responded to the jury, saying: “Gentlemen, I hope you have convicted the right man, but I am personally satisfied that you have made a terrible mistake.” Kimball’s attorney, Robert F. Leach, Jr., immediately requested that sentencing be suspended pending a motion for a new trial. Although Kimball had been indicted jointly with John P. Costello and John Moyer, neither Costello nor Moyer had been apprehended as of the time of Kimball’s trial. In Kimball’s motion for a retrial, filed just two days after he was convicted, he included twenty-five exhibits that established definitively that he had not been in Chicago on or around the dates in April when Elsie alleged Kimball had defrauded him. The motion was granted on the strength of the exhibits. Rather than retrying Kimball, the state’s attorney entered a plea of “not guilty confessed” on January 7, 1927 in a hearing before Judge O’Dunne. Seeing that the new evidence supported his earlier belief that Kimball was innocent, Judge O’Dunne apologized to Kimball for the injustice to which he had been subjected, expressing his “profound regret.” Judge O’Dunne added that he was sorry that the State of Maryland did not allow for restitution in instances of unjust conviction. - Meghan Barrett Cousino
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